The Senate Judiciary Committee held a hearing on Dec 1, 2021 to consider the nomination of Kathi Vidal to be Director of the USPTO. Inventors are concerned. Vidal’s clients have filed a combined 2,381 challenges at the PTAB. She has been paid millions of dollars by Apple, Samsung, Microsoft, Cisco, Micron, Netflix, Dell, Roku, and HP. She is attorney-of-record in 14 pending cases at the PTAB, all on behalf of the infringer/petitioner. She is a litigator from Silicon Valley, a culture devoted to destabilizing the patent system out of fear of inventors with competing technologies.
The combination of the 2011 America Invents Act and the Supreme Court decision in Arthrex this past summer have vested near-total power for the USPTO Director to decide ownership of more than a trillion dollars worth of intellectual property. The legal structure is such that the Director can revoke any patent through the PTAB review system – directly, by informal procedures, or by influencing the patent invalidation judges. The official record will include a statement that “it would have been obvious to a person of ordinary skill to combine [this and that] prior art”, but whether or not that analysis attaches to any given patent is a result of policy, pressure, and feelings shaped by the Director.
Vidal was included in a hearing with 4 other witnesses, so she got very few questions.
Due to the compressed hearing Grassley, Leahy, Tillis, Klobuchar, Coons, and Hirono were the only Senators to put forth questions. Senator Whitehouse staunchly advocated for the right to a jury trial under the 7th Amendment, but unfortunately failed to realize that is precisely the problem with the PTAB and did not solicit a response from Vidal.
Kathi Vidal Positions
Vidal stated that patent eligibility confusion under Section 101 needs to be clarified, either by legislation or by the Supreme Court. She said the current guidelines at the USPTO are working, but need constant attention “to ensure that guidelines are consistent with the law and promoting innovation.” Do to the brevity of her comments, she did not reconcile how the guidelines can be working when most of the judges on the Federal Circuit refuse to abide by them.
Vidal went along with Leahy’s complaint about patent thickets and did not dispute his assertion that patent abuse contributes to high drug prices. She said that she’s heard that some drug companies obtain patents on marginal improvements like “changing the color of a particular drug”.
Without taking a clear position, Vidal agreed with Leahy and Tillis that the Fintiv guidance at the PTAB isn’t working. Inventors don’t think it’s working either, but for different reasons. Vidal seemed to agree with Leahy and Tillis that the PTAB should institute reviews even when it interferes with a first-filed case in an Article III court. She was clearly committed to working on PTAB institution policy, but did not answer what or how. This is cause for concern.
Finally, Vidal broke the news the PTAB is working on a pro bono program for the PTAB. However, she seemed to indicate that it would be for the benefit of patent challengers (rather than inventors) stating that “small entities need as much access to the PTAB as anyone else.” Inventors don’t want access to the PTAB, we want a fair trial with an independent judge and jury and due process!